RICHARDSON v. THE STATE.
A24A0998
In the Court of Appeals of Georgia
October 23, 2024
DOYLE, Presiding Judge.
THIRD DIVISION, DOYLE, P. J., HODGES and WATKINS, JJ.
DOYLE, P. J.,
HODGES and WATKINS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DOYLE, Presiding Judge.
Following a jury trial, Darievq Javon Richardson was convicted of hijacking a motor vehicle,1 attempted armed robbery,2 and reckless conduct3 as a lesser included offense of aggravated assault.4 The trial court denied Richardson‘s second amended motion for new trial, and he appeals, arguing that (1) the evidence was insufficient to
Viewed in favor of the verdict,5 the record shows that at around 10:00 p.m. on the evening of January 22, 2018, a deputy responded to a “hang-up” 911 call, which the deputy later discovered was related to a domestic dispute call at the apartment where 18-year-old Richardson lived with his mother and younger sister. The mother described her son to police as wearing a black hoodie and dark pants, and the sister had called 911 because of the argument between them. The deputy left to patrol the complex to attempt to find him.
While it was still dark at approximately 5:00 a.m., the same deputy responded to the same apartment complex following a 911 call reporting an attempted car
The victim did not believe the assailant to be in a violent state (he described him as having a shaky voice, unsteady hands, and apparent lack of experience with a firearm), so he swiped at the weapon before running away to avoid a “fear bullet.” The report from the incident stated that the victim threw down his wallet before running, but during his testimony, the victim denied doing so intentionally; he maintained possession of his car key during the incident. The assailant stopped chasing the victim, who eventually encountered the first officer to arrive, and the victim lost no valuables from his wallet.
The two deputies accompanied the victim back to his car, which was still parked in the same location within view of Richardson‘s apartment. The car‘s engine was still
After Richardson was out of the apartment with the officers, the victim identified him as the individual who had assailed him earlier. The officers arrested Richardson, who did not have a weapon on him at that time, but the mother allowed officers to enter the apartment, and they discovered a BB gun that was near the blinds through which officers believed Richardson had watched during their investigation earlier that morning. Richardson also admitted to the officers that he “had done something stupid,” that he had the BB gun, and that he had tried to take the victim‘s car.
1. Richardson first argues that the evidence was insufficient to support the verdicts of attempted hijacking a motor vehicle and attempted armed robbery.
When reviewing the sufficiency of the evidence,
the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder‘s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.7
charges he argues were predicated on the same act of brandishing the BB gun as the act of aggravated assault.
As a general rule, a guilty verdict cannot be challenged on the ground that the jury‘s verdict of guilt on one count of an indictment is inconsistent with an acquittal on another count. Such verdicts are deemed constitutionally tolerable because they may reflect an exercise of lenity by the jury that is not necessarily grounded in its view of the evidence.12
Moreover, in State v. Springer,13 the Supreme Court of Georgia overturned prior precedent and held that “multiple guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive,” and therefore, do not require reversal of such jury verdicts.14 For the same reason then, the jury‘s guilty verdict as to reckless conduct in this case does not show that evidence was, as a matter of law, insufficient to support the jury‘s finding of guilt for the other two charges.
2. Richardson also argues that the trial court erred by failing to give a jury charge of reckless conduct as a lesser included offense for attempted hijacking of a motor vehicle and attempted armed robbery. As an initial matter, Richardson cites no
[I]n order to authorize a jury instruction on a lesser included offense, there must be some evidence in the record that the defendant committed that offense. But where the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.18
“We review a trial court‘s refusal to give a requested jury charge only for an abuse of discretion.”19
Richardson filed requests to charge, which he later amended to request that the trial court charge disorderly conduct or reckless conduct as lesser included offenses for all the counts against him. The trial court, however, charged the jury with the requested lesser included offense of reckless conduct only with regard to aggravated assault. Although the trial court‘s decision not to give an instruction for reckless
3. Richardson asserts that the trial court erred by failing to inquire into a sleeping juror. Richardson also raises a related claim of ineffective assistance of counsel for counsel‘s failure to request remedies from the court regarding the juror.
(a) Trial court error. After the close of evidence and during the trial court‘s charge to the jury, the State brought to the court‘s attention that one of the jurors appeared to be sleeping.21 The trial court admonished the panel to remain alert during the remainder of the proceedings, and it provided the jurors with a written copy of the charges during deliberation. Richardson, however, argues that the trial court should
In the context of a juror alleged to have been sleeping during court proceedings, “this [C]ourt will not interfere with a trial court‘s decision regarding removal of a juror from a panel absent an abuse of that court‘s discretion.”22
Pretermitting whether Richardson‘s enumeration of error was preserved for appeal,23 the record evinces no abuse of discretion on the part of the trial court in its action regarding the alleged sleeping juror.24 As noted above, in addition to stopping its instructions to admonish the panel to remain alert and attentive, the trial court sent a written copy of the jury charges with the jury for deliberation. Accordingly, this enumeration is without merit.25
(b) Ineffective Assistance of Counsel. Richardson‘s trial counsel did not request further action from the trial court regarding the alleged sleeping juror, and in his
In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel‘s errors, the outcome of the trial would have been different. Upon appellate review of that claim, we accept the trial court‘s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.26
At the motion for new trial hearing, trial counsel conceded that he did not think about requesting the trial court to determine if the juror had missed portions of the charge, but he “probably” should have requested the trial court to inquire into what the juror may have missed. Trial counsel did not really think about the matter at the time because he did not believe the juror had been sleeping for very long, but there was
Based on the record as stated in Division 3 (a) and based on the testimony at the motion for new trial, the trial court‘s decision to deny the motion for new trial as to this claim of ineffective assistance of counsel was not erroneous. Richardson presented no evidence in the form of testimony from the juror that the individual was not aware of the instructions, and because the written instructions were sent out for deliberation, we discern no error in the trial court‘s conclusion that Richardson has not established prejudice in this instance.27
4. Finally, Richardson contends that the trial court erred by conducting a bench conference outside his presence and by sentencing him via video conference.
“Embodied in the constitutional right to the courts under [the United States Constitution and]
(a) Bench Conference. When the State noticed that a juror may have been sleeping during instructions, a bench conference was held. Richardson argues that he was not present at this conference, and this was a violation of his right to be present at any stage of the court proceeding. To the extent that the incident could even be considered a bench conference, it was vanishingly brief, and there was no discussion — simply information given to the judge by one of the attorneys and the judge‘s acknowledgment of that information. The judge then admonished the jury to stay alert and pay attention, and it provided a written copy of the full instructions to them during deliberation.
The Georgia Supreme Court has held that a conference of limited scope involving only the trial court and counsel is not a critical stage of the proceedings. No juror was present at the bench conference. Moreover, [Richardson] could not have made a meaningful contribution to the bench conference. There was simply no error in proceeding with the limited inquiry outside the presence of the defendant.29
(b) Sentencing. Robinson also argues that his right to be present during his sentencing was violated because he was not physically present and appeared only via video conference. At the beginning of the October 13, 2021 sentencing hearing, the trial court asked Robinson if he was aware that sentencing would occur remotely and not in person, to which Robinson responded that he had not known that prior to the hearing, and the court explained that he had access to his attorney during the proceeding and provided him with the opportunity to speak privately with the attorney, which opportunity Robinson declined. At the hearing on the amended
“Sentencing is a critical stage at which a defendant is generally entitled to be present under the Georgia Constitution.”30 That said,
the right to be present belongs to the defendant, and he is free to relinquish it if he so chooses. A defendant may relinquish his right in several ways: if he personally waives the right in court; if his counsel waives the right at his express direction; if his counsel waives the right in open court while he is present; or, as seen most commonly in our case law, if his counsel waives the right and the defendant subsequently acquiesces to that waiver.... Acquiescence may occur when a defendant remains silent after he becomes aware of the proceedings occurring in his absence, so long as he had sufficient information concerning the matters occurring outside his presence for his silence to be fairly construed as
consent. The determination of whether a defendant acquiesced to the violation of his right to be present is often highly fact-specific. And the trial court‘s findings of fact on the issue will be upheld on appeal unless clearly erroneous.31
Assuming without deciding that a video conference does not constitute presence for these purposes,32 we cannot say that the trial court clearly erred by finding that the defendant acquiesced to appearing at the sentencing hearing via video conference. Although neither Robinson nor his attorney was aware beforehand that Robinson would not appear in person, Robinson could see and hear the proceedings, he had access to his attorney (although he chose not to exercise it), and he did not object to the method of the proceeding when discussing it with the trial court. Based on this record, which includes the motion for new trial hearing at which Robinson
Judgment affirmed. Hodges and Watkins, JJ., concur.